Ely

Over the last quarter century, conservative intellectuals and opinion-makers have promoted their political agenda by (in part) tethering it to a family of constitutional modalities that, for the sake of convenience, we may place under a single surname: originalism. The originalism movement was born of a crisis of confidence on the right; it was part of a politics of backlash against the perceived excesses of the Warren and Burger Courts. Now, notwithstanding control of the White House and Congress, progressive intellectuals face their own crisis of confidence, and the question naturally arises: What will Our Originalism look like?

I think this is the wrong question for progressive intellectuals to ask. It overstates—or rather misunderstands—the role that constitutional theory has played in conservative politics and, in doing so, misunderstands the role that it could play in the progressive politics of our imagined future. The originalism movement has had two interrelated goals, one of which has had only limited success and the other of which has succeeded beyond any reasonable expectations. First, though not foremost, originalism has been aimed at crafting a conservative jurisprudence. Numerous planks of the Reaganite conservative legal agenda may be stated in arguably originalist terms: for example, opposition to abortion rights, restrictions on school prayer, gun control, private litigation against government officials, and procedural rights for criminal defendants. But if the goal was to use originalism to achieve this or some other set of originalist-grounded doctrinal objectives, it has not nearly been realized. There is District of Columbia v. Heller, of course, and state sovereign immunity has been beefed up considerably, but one is hard-pressed to identify any other significant doctrinal developments over the last 25 years that are both originalist (other than coincidentally) and consistent with traditionally conservative political commitments.

The limited jurisprudential utility of a resolute commitment to originalism makes perfect sense. No serious legal professional can be originalist in the way in which its promoters in the public sphere usually mean it: that constitutional interpretation will be dictated by the expectations of the ratifying generation. Most American women like their equality just fine, thank you. And so originalists, to be taken seriously, must water the doctrine down so as not too much to unsettle the vast architecture of settled law that is inconsistent with original understandings. In light of broad, unanticipated, and well-calcified expansions in the administrative state, in congressional and executive power, and in individual rights, there is surprisingly little of relevance for “faint-hearted” originalists to pick at. Moreover, and inevitably, many of today’s conservatives, including on the Court itself, like their executive power just fine, thank you. They have little taste for doctrinaire originalism. For these reasons, I have come to the view that the window for originalism-motivated constitutional change is closed for the foreseeable future, with relatively little to show for itself by way of doctrine.

As I said, however, affecting constitutional doctrine was not the foremost goal of the originalism movement. Rather, originalism’s brilliance lies in its capacity to validate conservative politics. Originalism is at once cousin and heir to meaningless terms like strict constructionism and judicial restraint, the crucial difference being that, within professional discourse, originalism is not meaningless at all. Rather, a serious debate can be had, and has been had, about what originalism entails, when it should and should not be used, and what its limitations might be. And thus the fight was joined. The originalism movement had champions both within the world of self-respecting legal professionals—most prominently, Judge Bork and Justice Scalia—as well as outside of it—including demagogues like Rush Limbaugh and Glenn Beck. Within non-professional discourse, the originalism movement has helped give a populist frame to elitist conservative politics. It has done so both by highlighting the countermajoritarian difficulty and by creating synergies between the rhetoric of legal advocacy and a particularly resonant American cultural narrative of restoration. If you’ve been persuaded that you “want your country back,” then those espousing originalism within judicial politics are selling what you’re buying. By helping to marry conservative politics to the professed meaning of the Constitution, originalism has been a powerful weapon in the right’s arsenal. Additional effects on doctrine then come not by way of originalist opinions but indirectly through what Jack Balkin and Sandy Levinson have called partisan entrenchment: successful conservative politicians have availed themselves of their right to stock the bench with like-minded judges.

For many progressives, this is a depressing account. It not only suggests that substantive doctrinal change must await a much more sustained period of political control than the current moment represents, but it also, more ominously, seems to imply that constitutional theory doesn’t much matter, or at least doesn’t matter in the way we often want it to matter. The dream of many progressive legal professionals is to articulate a theory of constitutional interpretation that, faithfully applied, accomplishes a set of liberal doctrinal objectives: perhaps mitigation of the state action requirement, abolition of the death penalty and wantonly excessive prison sentences, and defense and enlargement of the civil rights gains of the Warren Court in areas like desegregation, gay rights, and the rights of the poor. I am confident that that dream is achievable in the abstract and that, like originalism, some progressive constitutional theory can supply the right idiom if and when, in limited ways, these gains are made through judicial decisions.

I am not at all confident, though, that the more robust success of the originalism movement as a validator of conservative politics may be replicated for progressives. We adopt that label because we believe in progress rather than regress: by and large, our substantive political vision trades not in memory but in imagination. Judges are inherently limited in their imaginative capacity; they cannot ordinarily be counted on to lead revolutions, or even to countenance them. As a parade of scholars from Frankfurter to Bickel to Kurland to Bork to Berger to Ely (each of whom could, at a time, be described as progressive) has argued, even the Warren Court was not theoretically attentive or ambitious. If and when progressives coalesce around a coherent set of constitutional values, they will not likely resonate with traditional conceptions of the judicial role: they will be forward-looking and democratic, and will de-emphasize the judicial monopoly over constitutional meaning. In short, our revolution will not be theorized, not by academics and judges anyway. That is no reason to promote a jurisprudence of judicial minimalism, but it is every reason to expect one.
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The Constitution in 2020 is a companion website to The Constitution in 2020 (Oxford University Press 2009). Here you will find ten sample chapters from the book, essays about the future of the U.S. Constitution, discussions of current constitutional issues, a bibliography and resources for further study.